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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
Case Number: 061982/2024
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
30 January 2026
In the matter between:
IVY NTSEPENG NKOMAZANA Applicant
and
SHISA SANGWENI HOLDINGS PROPRIETARY LIMITED First Respondent
HLENGWEYINKOSI DUBE Second Respondent
BIANCA GUGU GUMEDE Third Respondent
THE REGISTRAR OF DEEDS: PRETORIA Fourth Respondent
THE LEGAL PRACTICE COUNCIL (LPC) Fifth Respondent
JUDGMENT
WANLESS J
Introduction
[1] In this application, one Ivy Ntsepeng N komazana, an adult
female, is the Applicant. Shisa Sangweni Holdings (PTY ) Limited is
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the First Respondent; Hlengweyinkosi Dube is the S econd
Respondent; Bianca Gugu Gumede is the T hird Respondent; t he
Registrar of D eeds (Pretoria) is the F ourth Respondent a nd the
Legal Practice Counsel is the Fifth Respondent.
[2] It was always the intention of this Court to deliver a written
judgment in this matter . In light of, inter alia , the onerous workload
under which this Court has been placed and the lack of
administrative assistance, this has simply not been possible without
incurring further delays in the handing down thereof . In the
premises, judgment is being delivered ex tempore. Once
transcribed, it will be “converted ”, or more correctly “transformed” ,
into a written judgment and provided to the parties . In this manner,
neither the quality of the judgment nor the time in which the
judgment is delivered, will be compromised . For the purposes of the
time limits as prescribed in terms of the provisions of subrule
(49 )(1)( b), the date shall be the date upon which the written
judgment is uploaded onto C aselines . This Court is indebted to the
transcription services of this Division who generally provide
transcripts of judgments emanating from this Court within a short
period of time following the delivery thereof on an ex tempore basis .
[3] The relief sought by the Applicant (as set out, verbatim, in the
Applicant’s Notice of Motion) reads as follows:
[1] “ Cancelling the deed of sale entered into between the
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Applicant and the First Respondent regarding the sale of
immovable property fully described as Holding 169,
Lindequesdrif Agricultural Holdings, Extension 1, province of
the capital North- West (the immovable property ) held under
Deed of transfer number T000069265/2023.
[2] Directing the Fourth Respondent to cancel or reverse the
transfer and registration of the immovable property from the
name of the First Respondent back to the name of the
Applicant.
[3] Directing the First to the Third Respondent s to pay costs of
this application on an attorney and client scale. ”
[4] The said relief is opposed by the First Respondent and the
Second Respondent only .
The facts
[5] The facts in this matter, which are either common cause or
which cannot be seriously disputed by any of the parties, are as set
out hereunder .
[6] On or about the 29 th of August 2023 at or near Johannesburg,
Gauteng, the Applicant , acting in person and the First Respondent ,
represented by the Second Respondent , duly authori sed thereto,
entered into a written agreement of purchase and sale (“the
agreement ”).
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[7] In terms of the agreement the Applicant sold to the First
Respondent a plot of land measuring approximately two hectares
(“th e property ”) and situated in the North -West Province . The
purchase price to be paid by the First Respondent to the Applicant
in respect of the property was R 300 000.00. This was payable by
the payment of a deposit of R 150 000 .00 on signature of the
agreement “to the trust account of the Conveyancing Attorney ” with
the balance of the purchase price, namely R150 000 ,00 , being
payable “on the date that the conveyancing attorney confirms that
the transfer documents have been lodged at the Pretoria Deeds
Office .”
[8] The agreement further provided that “The full purchase price
shall be paid by the conveyancing attorney to the Seller ” (“the
Applicant” ) within 48 (forty - eight) hours of the registration of the
property into the name of the Purchaser (the First Respondent ) at
the Deeds Office.” Importantly, the agreement also states
(verbatim) that “Transfer of the Property shall be affected by the
following Conveyancing Attorneys NDLOVU GUMEDE ATTORNEYS
(tel: 0 [… ] / 0 [… ]) (email: b [… ]) situated at 2[ … ] P[… ] Street, N [… ],
Randburg, were appointed specifically by the Purchaser. ”
[9] As set out in this judgment 1 the Third Respondent in the
present matter is one Bianca Gugu Gumede. In the Applicant’s
Founding Affidavit and admitted by the First and Second
Respondents in their Answering Affidavit, the Third Respondent is
1 Paragraph [1] ibid .
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more fully described as “Bianca Gugu Gumede , an adult female
person of full legal capacity, a conveyancer and director of a law
firm, Ndlovu Gumede Attorneys with principal place of business at
2[… ] H[… ] Street, N [… ], EXT 15, Randburg, Gauteng Province. ” I n
the premises, it is clear from the aforegoing that the incorrect party
may well have been cited as the Third Respondent in the
application. However, in light of the fact that, inter alia , there is no
opposition in the present matter by either Ndlovu Gumede Attorneys
or Bianca Gugu Gumede and that the citation of the Third
Respondent was never an issue on the application papers or when
the matter was argued before this Court , it can be accepted that this
“issue” , if indeed it is one, does not require any further attention by
this Court.
[10 ] On or about the 30 th of September 2023 the purchase price
was fully paid by the First Respondent to the Third Respondent (by
making payment into the Third Respondent’s business account ) and
on or about the 9 th of November 2023 the property was transferred
and registered in the name of the First Respondent. P ursuant
thereto, the Third Respondent has failed to pay the purchase price
to the Applicant.
[1 1] As a result of the Third Respondent 's failure to make payment
to the Applicant as aforesaid the Applicant , on or about the 3 rd of
April 2024, instituted an application in this Court , under case
number 35178/ 2024, in terms of which the Applicant claims from the
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Third Respondent , inter alia , payment of the net proceeds of the
sale . T hereafter, on or about the 5 th of June 2024, the Applicant
instituted the present application .
Issues
[1 2] The principal i ssues which this Court is called upon to
determine are (a) whether the citation of the Second Respondent
constitutes a misjoinder and ( b) w hether the Applicant is entitled to
cancel the agreement .
Alleged misjoinder of the Second Respondent
The First and Second Respondent’s submissions
[1 3] The Second Respondent has been improperly joined in this
application. It is common cause that the Second Respondent acted
in his capacity as a director of the First Respondent during the sale
transaction. A private company is a separate legal entity from its
shareholders and directors, capable of entering into contracts, suing
and being sued in its own name .
[1 4] Subs ection 19(2) of the Companies Act provides that 2
“A person is not, solely by reason of being an incorporator ,
shareholder or director of a company, liable for any liabilities
or obligations of the company, except to the extent that the
Act or the company’s Memorandum of Incorporation provides
2 Act 71/2008.
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otherwise. ”
[1 5] The Applicant has not alleged or proved that the Second
Respondent breached the sale agreement to which he was not a
party ; breached his fiduciary duty as a director or acted in a manner
justifying the piercing of the corporate veil .
[1 6] The inclusion of the Second Respondent contravenes
subsection 19 (2) of the Companies Act and the principle of
separate legal personality, constituting a misjoinder . It was
submitted on behalf of the First and Second Respondents t hat the
Applicant’s claim against the Second Respondent should be
dismissed with costs on an attorney and client scale .
The Applicant’s submissions
[17] In broad summary, it was submitted (correctly in the opinion of
this Court ) that in order to determine whether there exists a
misjoinder or not, the general principle in our law requires that it be
determined whether the Second Respondent has a direct and
substantial interest in the subject -matter of the litigation, which may
be prejudicially affected by the judgment of the Court. 3
[1 8] I t was further submitted that the Second Respondent is the
sole director of the First Respondent , its agent and “controlling
mind ”. In all the dealings between the First Respondent and the
Applicant the Second Respondent has been the sole decision maker
3 Snyders v De Jager 2017 JDR 0051 (CC at paragraph) [9].
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and is responsible for signing the agreement as well as the transfer
documents in order to give effect to the transfer of the property into
the First Respondent 's name. In the premises, it was submitted
that, by virtue of the composition of the First Respondent , the
Second Respondent has an interest in the subject -matter of the
litigation.
[1 9] A rising from the aforegoing, it was submitted, on behalf of the
Applicant , that there had been no misjoinder .
Discussion and finding
[20 ] In the first instance, it is imperative to note that the only relief
sought by the Applicant against the Second Respondent is in
respect of costs . Rather than oppose the application on the basis
that he should not be liable for costs the Second Respondent has
elected to oppose the application in its entirety . In doing so, he has
raised the issue of misjoinder .
[2 1] Putting aside whether or not, in the event of, inter alia , this
Court finding that the Applicant should be granted the relief sought
and this Court , in the exercise of its discretion, granting a costs
order against the Second Respondent , it must be accepted that, on
the facts which are common cause in this matter, the Second
Respondent does indeed have a direct and substantial interest in
the outcome of the present matter. I n the premises, this Court finds
that there has been no misjoinder in respec t of the Second
Respondent in the application .
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Whether the Applicant is entitled to cancel the agreement
The Applicant's case
[2 2] The basis upon which the Applicant relies for being entitled to
cancel the agreement is that the agreement has been breached in
two (2) material respects, namely :
22.1. the failure of the First Respondent to effect payment of
the purchase price into the trust account of the Third
Respondent; and
22.2. the failure of the Third Respondent to make payment of
the purchase price to the Applicant.
The case for the First and Second Respondents
[2 3] The First and Second Respondents submit that the Applicant
has failed to show that she is entitled to the relief sought in that :
23.1 t he Applicant has not met the requirements for
cancellation in terms of section 6 of the D eeds Registries Act ,
47 of 1937 (“the Act ”);
22.2 the Third Respondent 's failure to pay the net proceeds
of the sale to the Applicant does not affect the validity of the
transfer of the property, which requires (a) delivery by
registration of transfer in the D eeds Office and (b) a valid real
agreement .
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The law
[2 4] In the first instance the A pplicant relied upon the matter of
Minister of Agriculture and Land Affairs and Another v De Klerk and
Others 4 where it was held :
“Whether the conveyancer was the agent of the seller for
receiving payment of the purchase price from the purchaser in
this instance depends solely on the terms of the deed of sale .
The conveyancer received and held the money paid over to
him in terms of the sale, although not as a party to the deed of
sale. No other tacit or express authorization is relied upon .”
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[2 5] Reliance was also placed by the Applicant upon the dicta of
Botha JA in the matter of Baker v Probert 6 where the learned
Judge 7 stated the following :
“I have difficulty in visualizing a situation (save possibly for an
exceptional case) in which there could be due performance of
the obligation to pay the purchase price, by paying it to a third
party, unless that third party was appointed and authorized by
the seller to accept the payment, thus constituting him his
agent for the purpose.”
[2 6] Counsel for the Applicant pointed out that in the matter of De
4 At paragraph [16].
5 1985 (2) SA 429 (AD).
6 2023 JDR 4385 (GJ).
7 At 440A-C.
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Jongh v Philippides and Others 8 this Court held 9 that :
“It is fairly trite and a long established legal principle that a
princip al is liable for the dishonest acts of his agent, even
where the agent commits a fraud upon the principal .”10
[2 7] In support of their opposition to the relief sought by the
Applicant in this matter the First and Second Respondents relied
upon the decision in Nedbank Ltd v Mendelow NO and Another 11,
where it was held 12 that :
“…where there is no real intention to transfer ownership on the
part of the owner of the property, then a purported registration
of transfer (and likewise the registration of any other real right
such as a mortgage bond) has no effect. ”
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[2 8] Also, the First and Second Respondents relied upon the
principle as set out by the Supreme Court of Appeal (“the SCA”) i n
the matter of Legator McKenna v Shea 14 that :
“…if there is any defect in what he termed the “one real
agreement” - that is, the intention on the part of the transferor
and the transferee to transfer and to acquire ownership of a
8 2023 JDR 4385 (GJ).
9 At paragraph [15].
10 Whilst the order of this Court was set aside by the Full Court of this Division,
this principle was not disturbed by the judgment of the Full Court.
11 2013 (6) SA 130 (SCA).
12 At paragraph [13].
13 See Botha NO v Lebako- Radebe and Others (16835/2021) [2022] ZAGPJHC 22
September 2022.
14 2010 (1) SA 35 (SCA) at paragraphs [21] [22].
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thing respectively - then ownership will not pass despite
registration. Thus while a valid underlying agreement to pass
ownership, such as a sale or donation, is not required, there
must nonetheless, be a genuine intention to transfer
ownership.” 15
Discussion
Can the Applicant cancel the agreement on the basis that the
First Respondent did not make payment of the purchase price
into the Third Respondent ’s trust account but paid that
purchase price into the Third Respondent's business account?
[2 9] It is common cause in this matter that payment by the First
Respondent of the purchase price was paid by a payment of
the deposit of R 150 000 .00 and the balance of the purchase price
(also R150 000 .00 ) into the business account of the Third
Respondent.
[30 ] S ubclause 2.2.1 of the agreement, which deals with the
payment of the deposit, specifies that this payment should be made
to the trust account of the Conveyancing Attorney. However,
subclause 2.2.2 of the agreement, which deals with the payment of
the balance of the purchase price, simply states that the further sum
of R 150 000 .00 “…is payable by the Purchaser ( First Respondent )
on the date that the conveyancing attorney ( Third Respondent )
15 See also Radebe and Another v Sheriff for the District of Vereeniging and
Others (31495/13) [2014] ZAGPHHC 228 25 September 2014 at paragraph [20].
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confirms that the transfer documents have been lodged at the
Pretoria Deeds Office. ” Significantly , subclause 2.2.2 makes no
provision whatsoever as to whom the amount in question is to be
paid and , if payment is to be made to the attorney carrying out the
transfer of the property, into which type of account controlled by
that attorney .
[3 1] Even if this Court should accept (in favour of the Applicant )
that upon a proper interpretation of the agreement the First
Respondent was obliged to make payment to the Third Respondent
and into the Third Respondent 's trust account, it is difficult to
accept that the First Respondent 's failure to comply strictly
therewith constitutes a material breach of the agreement entitling
the Applicant to cancel same .
[3 2] This is because, inter alia , it is common cause on the
application papers before this Court that payment was made to the
Third Respondent (who confirmed same ). Moreover, as pointed out
in the First and Second Respondents’ Answering Affidavit, if
payment into the business account was indeed a material breach of
the agreement the Applicant failed to provide the First Respondent
with a written notice to remedy the breach in terms of the agreement
(subclause 6.1 thereof ) when the Applicant s became aware thereof
during or about October 2023.
[3 3] In addition to the aforegoing, the Second Respondent , on
behalf of the First Respondent , made the payments into a bank
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account the details of which were provided by the Third
Respondent. In doing so, the Second Respondent acted on the
representations of the Third Respondent , which he was entitled to
do. Indeed, the Applicant never disputed same .
[3 4] In the premises, this Court finds that the payment of the
purchase price by the First Respondent into the business account of
the Third Respondent is not a material breach of the agreement
entitling the Applicant to cancel the agreement .
The defence of the First and Second Respondents that the
failure of the Third Respondent to pay the net proceeds of the
sale to the Applicant does not affect the validity of the transfer
of the property.
[3 5] As set out earlier in this judgment 16 the First and Second
Respondents contend that, inter alia, the transfer of the property
from the Applicant to the First Respondent is valid . This is because
(so the argument goes ) there was delivery by registration of transfer
in the Deeds Office and there was a valid real agreement with the
intention to transfer ownership of the property .
[3 6] Whilst this Court fully accepts the said principles of law, as
supported by the authorities as set out earlier in this judgment, this
Court must reject that those principles, appl ied to the facts of the
present matter, afford the First and Second Respondents a valid
defence to the relief as sought by the Applicant.
16 Paragraph [23] ibid .
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[3 7] The reasons therefor are, inter alia , that the intention to
transfer on the basis of a valid real agreement can only exist where
that agreement remains in force. In the event of that agreement
being breached, giving rise to the cancellation thereof, a party to
the agreement cannot rely on a valid real agreement with the
intention to transfer ownership of the property to support a valid
transfer of the property . Neither the First or Second Respondent
presented any argument before this Court or prese nted any
authority in support of such an argument, which would gainsay the
said reasoning as applied by this Court.
[3 8] In the premises, this Court finds that the principles relied
upon by both Respondent s and as enunciated by the authorities
referred to herein do not, on their own, constitute a defence to the
relief sought by the Applicant. Of course, this is wholly dependent
upon the Applicant proving a material breach of the agreement by
the First Respondent entitling the Applicant to cancel the
agreement .
Is the Applicant entitled to cancel the agreement on the ground
of a material breach thereof, arising from the failure of the Third
Respondent to pay to the Applicant the purchase price?
[3 9] This ground relied upon by the Applicant is, in the opinion of
this Court , the crux of the present matter . In passing, a decision in
respect thereof would appear to encompass the ground of
opposition raised by the First and Second Respondents that the
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Applicant has failed to satisfy the requirements for cancellation in
terms of section 6 of the Act . 17
[40 ] S ubclause 3.1 of the agreement states that :
“Transfer of the Property shall be effected by the following
Conveyancing Attorney, Ndlovu Gumede Attorneys (tel: 0 [… ]
0[… ]) (email: b [… ]) situated at 2 [..] P[… ] Street, N [… ], R [… ],
were appointed specifically by the purchaser .”18
[4 1] Relying on the common cause facts in this matter read with
the applicable principles as set out, inter alia , in De Klerk; Baker
and De Jongh, 19 it was submitted , on behalf of the Applicant , that :
41.1 it was F irst Respondent’s election to appoint the Third
Respondent for the purpose of facilitating the transaction ;
41.2 i n electing to appoint the Third Respondent the
conclusion that ought to be drawn is that the Third Respondent
was appointed as the First Respondent 's agent . The Third
Respondent received the funds, not as a party to the
agreement, but rather as a third -party agent of the First
Respondent;
41.3 it cannot be said that the Third Respondent was the
Applicant 's agent in that there was no authority given by the
Applicant to the Third Respondent for her to act in that
17 Subparagraph 23.1 ibid .
18 Emphasis added .
19 Paragraphs [24] to [26] ibid .
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capacity . Therefore, the First Respondent is liable for the
breach of the agreement as the principal of the Third
Respondent.
Conclusion
[4 2] This Court has no hesitation in accepting the said submissions
made on behalf of the Applicant. Further, it must be accepted that
the failure of the Third Respondent to pay the proceeds of the sale
to the Applicant , constitutes a material breach of the agreement .
[4 3] In the premises, the Applicant is entitled to cancel the
agreement . Arising therefrom, the Applicant is entitled to the relief
sought .
Costs
[4 4] It is trite that costs should normally follow the result . Further,
it is trite that a Court has a general discretion, to be exercised
judicially, when considering an award for costs . The principle that
costs should normally follow the result would apply unless a ny
unusual circumstances exist . No such circumstances have been
drawn to the attention of this Court. In the premises, the Applicant
should be awarded costs .
[4 5] In its N otice of Motion the Applicant seeks an order that “…the
First to Third Respondents… pay costs of this application on an
attorney and client scale .” Insofar as the Second Respondent is
concerned the order sought by the Applicant that he be liable for
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costs amounts , in effect , to a costs order de bonis propris . In the
opinion of this Court the factors that should be present for this
Court , in its discretion, to make such an order, are simply not
apparent from the application papers . Arising therefrom, this Court
declines to make such an order .
[4 6] A s far as the Third Respondent is concerned, there has been
no opposition to the relief sought in the present matter . In the
premises, this Court finds that a cost order against the Third
Respondent would not be justified or appropriate.
[4 7] Further, in the opinion of this Court , a punitive costs order
against the First Respondent is not, on the facts of this matter,
warranted.
Order
[4 8] This Court makes the following order :
1. The deed of sale entered into between the Applicant and the First
Respondent in respect of the immovable property, more fully described
as Holding 169, Lindequesdrif Agricultural Holdings , E xtension 1,
Province of the North- West (“the immovable property”) held under Deed
of Transfer, number T000069265/2023 (“The Deed of Transfer ”) is
cancelled.
2. The Fourth Respondent is to cancel and reverse the transfer and
registration of the immovable property held under the Deed of Transfer,
from the name of the First Respondent back into the name of the
Applicant.
3. The First Respondent is to pay the costs of this application.
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___________________________
BC WANLESS
JUDGE OF THE HIGH COURT
JOHANNESBURG
Date of Hearing: 16 April 2025
Date of ex tempore Judgment: 24 November 2025
Date of written Judgment: 30 January 2026
Appearances
On behalf of the Applicant: Adv Boitumelo Potsane
Instructed by: Sibanda Bukhosi Attorneys Inc
Email: info@bsincattorneys.co.za
On behalf of the First and Second Respondents: Mr T Mudenda
Instructed by: Mudenda Inc Attorneys
Email: tendayi@mudendainc.co.za / wamudenda@gmail.com
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